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2023
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[2023] ZAFSHC 10
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Sebati v S (4993/2022) [2023] ZAFSHC 10 (25 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4993/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TSHEPO
JOHN
SEBATI
Applicant
and
THE
STATE
Respondent
HEARD
ON:
02
DECEMBER 2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down
electronically by circulation to the parties’ legal
representatives
by email and release to SAFLII on 25 JANUARY 2023.
The date and time for hand-down is deemed to be 25 JANUARY 2023 at
13H00.
[1]
The applicant seeks an order admitting him to bail pending the
hearing of his appeal
by the full bench of this division. He stood
trial together with three (3) others for the murder of his estranged
girlfriend. At
the conclusion of evidence, I convicted him and two
(2) others on 2 March 2020. One accused was acquitted. I sentenced
each of
them to life imprisonment and a total of 20 years’
imprisonment. The other sentences run concurrently with the sentence
of
life imprisonment.
[2]
Aggrieved with both convictions
and sentences, the applicant applied for leave to appeal
which was
unsuccessful. On petition, two Judges of Appeal granted him leave to
appeal to the full bench of this division. Admittedly
this is the
main reason why this application is before me. This application is
premised on the argument that when he was granted
leave to appeal, it
was indicative of the existence of the reasonable prospects of
success.
[3]
The grounds of appeal averred in the founding affidavit are that the
court wrongfully
admitted evidence of extra-curial statements by a
co-accused against him; there were glaring contradictions between the
post-mortem
report and photographs of the crime scene, the evidence
of section 204 of Act 51 of 1977 witness was not of satisfactory
quality
and the indictment made no reference to common purpose yet he
was convicted based on the aforementioned doctrine.
[4]
Counsel for the applicant raised arguments that he is not a flight
risk and does not
possess any travelling documents. He pointed out
that throughout his trial he adhered to the bail conditions and did
not jeopardise
the proper functioning of the criminal justice system.
The other point raised was that he will not interfere with any
witnesses
because the trial has been concluded. In any event he never
did so while the trial was continuing. Further he has no pending
matters
and there is no likelihood that he will commit any offence.
[5]
It is trite that the applicant bears the evidential burden to prove
that it is in
the interests of justice that he ought to be admitted
to bail. In our legal system, bail is governed by the provisions of
section
60 of Act 51 of 1977. The applicant must persuade the court
that it is in the interests of justice that he be admitted to bail.
[6]
In this matter, the applicant
does not exclusively rely on the success of the petition.
It was
submitted that, the fact that the petition has been granted, does not
mean that there are prospects of success. The applicant
in the notice
of appeal raised the issue that the evidence of Moramang Zon was not
approached with the necessary caution because
he was a co-accused. It
is ambiguous in what manner that allegation is made. There was no
section 204 witness who testified during
the trial. There were no
extra-curial admissions either. In the summary of substantial facts,
it was stated that the case for the
State is that at all material
times they (him and co-accused persons) were acting in execution and
furtherance of a common purpose.
[7]
It is well known that the learned Judges of Appeal do not write a
judgment in matters
of this nature. It is unknown on what grounds was
the petition granted. What is accepted is that they should have
carefully considered
the matter and found that there are arguable
prospects of success.
[8]
However, the granting of a petition is no guarantee that the appeal
will be successful.
S
v Rohde
is a case in point.
[1]
In that
matter the majority concluded that it was in the interests of justice
to admit the appellant to bail because there were
prospects of
success. The minority took a different view. The important point is
that the main appeal failed.
[9]
What stands out in the matter is the gravity of the sentence imposed
against the applicant.
He comes before this court with drastically
changed circumstances. He is no longer presumed innocent until proven
guilty. He is
a convicted person serving a lengthy sentence. The
propensity to evade serving his sentence is more accentuated by that
sentence.
On that score it will not be in the interests of justice to
admit him to bail.
[10]
There is no prejudice if the applicant remains incarcerated. This
matter will, in all probabilities,
serve before the full bench of
this division before the end of the first term in 2023. It is a few
weeks from now and hopefully
it will be brought to finality. The
applicant mentions the fact that he was gainfully employed before he
started serving his sentence.
There is no evidence that he still has
a job and the odds are that he no longer has one due to prolonged
incarceration. Again no
prejudice will be suffered. In fact, this
enhances the likelihood that he will not return to serve out his
sentence in the event
the appeal fails. During the trial it was
submitted on his behalf that his wife is employed by Mohokare
Municipality. In his affidavit
before this court he averred that his
wife is unemployed. Clearly if the accused uses all means to be
admitted to bail including
falsehoods, there is ample indication that
he will evade his sentence. Therefore, this emphasizes the point that
he will evade
his sentence. That cannot be in the interests of
justice.
[11]
The order is as follows: -
11.1. The application is
dismissed.
M.A.
MATHEBULA, J
On
behalf of the applicant:
Adv. J. Potgieter
Instructed
by:
Peyper & Botha Attorneys
BLOEMFONTEIN
On
behalf of the respondent:
Adv. L.B. Mpemvane
Instructed
by:
Office of the Director of Public Prosecutions
BLOEMFONTEIN
/TKwapa
[1]
2020 (1) SACR 329
(SCA).